Case of kononov V. Latvia 3 страница

70. The Code illustrated the two main rights of a “combatant”: prisoner of war status (Article 49) and protection from prosecution for certain acts which would be criminal for a civilian (Article 57):

“Art. 49. A prisoner of war is a public enemy armed or attached to the hostile army for active aid, who has fallen into the hands of the captor, either fighting or wounded, on the field or in the hospital, by individual surrender or by capitulation.

All soldiers, of whatever species of arms; all men who belong to the rising en masse of the hostile country; all those who are attached to the army for its efficiency and promote directly the object of the war, except such as are hereinafter provided for; all disabled men or officers on the field or elsewhere, if captured; all enemies who have thrown away their arms and ask for quarter, are prisoners of war, and as such exposed to the inconveniences as well as entitled to the privileges of a prisoner of war.”

“Art. 57. So soon as a man is armed by a sovereign government and takes the soldier's oath of fidelity, he is a belligerent; his killing, wounding, or other warlike acts are not individual crimes or offenses. No belligerent has a right to declare that enemies of a certain class, colour, or condition, when properly organized as soldiers, will not be treated by him as public enemies.”

71. The notion of levée en masse was covered in Article 51:

“If the people of that portion of an invaded country which is not yet occupied by the enemy, or of the whole country, at the approach of a hostile army, rise, under a duly authorized levy 'en masse' to resist the invader, they are now treated as public enemies, and, if captured, are prisoners of war.”

72. Article 59 indicated individual criminal responsibility for violations of the laws and customs of war:

“A prisoner of war remains answerable for his crimes committed against the captor's army or people, committed before he was captured, and for which he has not been punished by his own authorities. All prisoners of war are liable to the infliction of retaliatory measures.”

73. Articles 63-65 asserted that the use of enemy uniforms was outlawed as an act of perfidy, removing the protections of the laws and customs of war from persons who engaged in such conduct:

“Art. 63. Troops who fight in the uniform of their enemies, without any plain, striking, and uniform mark of distinction of their own, can expect no quarter.

Art. 64. If American troops capture a train containing uniforms of the enemy, and the commander considers it advisable to distribute them for use among his men, some striking mark or sign must be adopted to distinguish the American soldier from the enemy.

Art. 65. The use of the enemy's national standard, flag, or other emblem of nationality, for the purpose of deceiving the enemy in battle, is an act of perfidy by which they lose all claim to the protection of the laws of war.”

74. Together with Article 49, Article 71 described a particular status later referred to as hors de combat under international law:

“Art. 71. Whoever intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death, if duly convicted, whether he belongs to the Army of the United States, or is an enemy captured after having committed his misdeed.”

75. Articles 76 and 77 created obligations to treat prisoners of war with humanity and proportionately in the event of an escape attempt.

“Art. 76. Prisoners of war shall be fed upon plain and wholesome food, whenever practicable, and treated with humanity.

Art. 77. A prisoner of war who escapes may be shot or otherwise killed in his flight; but neither death nor any other punishment shall be inflicted upon him simply for his attempt to escape, which the law of war does not consider a crime. Stricter means of security shall be used after an unsuccessful attempt at escape.”

76. Article 101 contained a prohibition of treacherous wounding (at the time understood to be the same as perfidious wounding):

“While deception in war is admitted as a just and necessary means of hostility, and is consistent with honourable warfare, the common law of war allows even capital punishment for clandestine or treacherous attempts to injure an enemy, because they are so dangerous, and it is difficult to guard against them.”

77. Articles 88 and 104 contained provisions for punishing spies:

“Art. 88. A spy is a person who secretly, in disguise or under false pretence, seeks information with the intention of communicating it to the enemy. The spy is punishable with death by hanging by the neck, whether or not he succeed in obtaining the information or in conveying it to the enemy.”

“Art. 104. A successful spy or war-traitor, safely returned to his own army, and afterwards captured as an enemy, is not subject to punishment for his acts as a spy or war-traitor, but he may be held in closer custody as a person individually dangerous.”

2. Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight (“the St Petersburg Declaration 1868”)

78. This Declaration was the first formal agreement prohibiting the use of certain weapons in war. The Preamble recalled three principles of the laws and customs of war: the only legitimate object during war is to weaken the military forces of the enemy; there is a limit to the means which can be employed against enemy forces; and the laws and customs of war do not condone violence against those hors de combat.

3. Project of an International Declaration concerning the Laws and Customs of War (“the Draft Brussels Declaration 1874)

79. This Declaration was never adopted at the Diplomatic Conference in Brussels in 1874, although it was another influential codification exercise. The relevant Articles of the Declaration read as follows:

“Who should be recognized as belligerents combatants and non-combatants

Art. 9. The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:

1. That they be commanded by a person responsible for his subordinates;

2. That they have a fixed distinctive emblem recognizable at a distance;

3. That they carry arms openly; and

4. That they conduct their operations in accordance with the laws and customs of war. In countries where militia constitute the army, or form part of it, they are included under the denomination 'army'....

Art. 10. The population of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 9, shall be regarded as belligerents if they respect the laws and customs of war.

Art. 12. The laws of war do not recognize in belligerents an unlimited power in the adoption of means of injuring the enemy.

Art. 13. According to this principle are especially 'forbidden':...

(b) Murder by treachery of individuals belonging to the hostile nation or army;

(c) Murder of an enemy who, having laid down his arms or having no longer means of defense, has surrendered at discretion;...

(e) The employment of arms, projectiles or material calculated to cause unnecessary suffering, as well as the use of projectiles prohibited by the Declaration of St. Petersburg of 1868;

(f) Making improper use of a flag of truce, of the national flag or of the military insignia and uniform of the enemy, as well as the distinctive badges of the Geneva Convention;

(g) Any destruction or seizure of the enemy's property that is not imperatively demanded by the necessity of war....”

“Art. 20. A spy taken in the act shall be tried and treated according to the laws in force in the army which captures him.”

“Art. 23. Prisoners of war are lawful and disarmed enemies. They are in the power of the hostile Government, but not in that of the individuals or corps who captured them. They must be humanely treated. Any act of insubordination justifies the adoption of such measures of severity as may be necessary. All their personal belongings except arms shall remain their property.”

“Art. 28. Prisoners of war are subject to the laws and regulations in force in the army in whose power they are. Arms may be used, after summoning, against a prisoner of war attempting to escape. If recaptured he is liable to disciplinary punishment or subject to a stricter surveillance.

If, after succeeding in escaping, he is again taken prisoner, he is not liable to punishment for his previous acts.”

4. The Laws of War on Land 1880 (“the Oxford Manual 1880”)

80. The Oxford Manual 1880, influenced by the draft Brussels Declaration 1874 and drafted by the Institute of International Law, was designed to assist Governments in formulating national legislation on the laws and customs of war. The relevant Articles read as follows:

“Art. 1. The state of war does not admit of acts of violence, save between the armed forces of belligerent States. Persons not forming part of a belligerent armed force should abstain from such acts. This rule implies a distinction between the individuals who compose the “armed force” of a State and its other 'ressortissants'. A definition of the term “armed force” is, therefore, necessary.

Art. 2. The armed force of a State includes:

1. The army properly so called, including the militia;

2. The national guards, landsturm, free corps, and other bodies which fulfil the three following conditions:

(a) That they are under the direction of a responsible chief;

(b) That they must have a uniform, or a fixed distinctive emblem recognizable at a distance, and worn by individuals composing such corps;

(c) That they carry arms openly;

3. The crews of men-of-war and other military boats;

4. The inhabitants of non-occupied territory, who, on the approach of the enemy, take up arms spontaneously and openly to resist the invading troops, even if they have not had time to organize themselves.

Art. 3. Every belligerent armed force is bound to conform to the laws of war.

Art. 4. The laws of war do not recognize in belligerents an unlimited liberty as to the means of injuring the enemy. They are to abstain especially from all needless severity, as well as from all perfidious, unjust, or tyrannical acts.”

“Art. 8. It is forbidden:...

(b) To make treacherous attempts upon the life of an enemy; as, for example, by keeping assassins in pay or by feigning to surrender;

(c) To attack an enemy while concealing the distinctive signs of an armed force;

(d) To make improper use of the national flag, military insignia or uniform of the enemy, of the flag of truce and of the protective signs prescribed by the 'Geneva Convention'.

Art. 9. It is forbidden:...

(b) To injure or kill an enemy who has surrendered at discretion or is disabled, and to declare in advance that quarter will not be given, even by those who do not ask it for themselves....

Art. 20....

(e) Who may be made prisoners of war.

Art. 21. Individuals who form a part of the belligerent armed force, if they fall into the hands of the enemy, are to be treated as prisoners of war, in conformity with Articles 61 et seq....”

81. The section containing Articles 23-26 was entitled “Spies” and dealt with their treatment:

“Art. 23. Individuals captured as spies cannot demand to be treated as prisoners of war. But:

Art. 24. Individuals may not be regarded as spies, who, belonging to the armed force of either belligerent, have penetrated, without disguise, into the zone of operations of the enemy, -- nor bearers of official dispatches, carrying out their mission openly, nor aeronauts (Article 21).

In order to avoid the abuses to which accusations of espionage too often give rise in war it is important to assert emphatically that:

Art. 25. No person charged with espionage shall be punished until the judicial authority shall have pronounced judgment.

Moreover, it is admitted that:

Art. 26. A spy who succeeds in quitting the territory occupied by the enemy incurs no responsibility for his previous acts, should he afterwards fall into the hands of that enemy.”

82. Article 32(b) prohibited, inter alia, the destruction of public or private property, if this destruction was “not demanded by an imperative necessity of war”.

83. Chapter III outlined the rules for captivity of prisoners of war. It described the legal basis for their detention (it was not a punishment or vengeance), it provided that they must be treated humanely (Article 63) and that arms could be used only if the prisoner attempted to flee (Article 68).

84. Part III of the Manual provided for punishments for violations of the rules in the Manual and, in the event that the alleged offender could not be detained, the Manual outlined the limited circumstances for legitimate belligerent reprisals:

“If any of the foregoing rules be violated, the offending parties should be punished, after a judicial hearing, by the belligerent in whose hands they are. Therefore:

Art. 84. Offenders against the laws of war are liable to the punishments specified in the penal law.

This mode of repression, however, is only applicable when the person of the offender can be secured. In the contrary case, the criminal law is powerless, and, if the injured party deem the misdeed so serious in character as to make it necessary to recall the enemy to a respect for law, no other recourse than a resort to reprisals remains. Reprisals are an exception to the general rule of equity, that an innocent person ought not to suffer for the guilty. They are also at variance with the rule that each belligerent should conform to the rules of war, without reciprocity on the part of the enemy. This necessary rigour, however, is modified to some extent by the following restrictions:

Art. 85. Reprisals are formally prohibited in case the injury complained of has been repaired.

Art. 86. In grave cases in which reprisals appear to be absolutely necessary, their nature and scope shall never exceed the measure of the infraction of the laws of war committed by the enemy. They can only be resorted to with the authorization of the commander in chief. They must conform in all cases to the laws of humanity and morality.

If any of the foregoing rules be violated, the offending parties should be punished, after a judicial hearing, by the belligerent in whose hands they are.”

5. Hague Convention (IV) respecting the Laws and Customs of War on Land 1907 and the annexed Regulations

85. The international peace conference in the Hague in 1899 resulted in the adoption of four Conventions including the Hague Convention (II) with Respect to the Laws and Customs of War on Land and its annexed Regulations. These instruments were replaced, following the second Hague International Peace Conference in 1907, by the Hague Convention (IV) respecting the Laws and Customs of War on Land1907and the annexed Regulations (“The Hague Convention and Regulations 1907” ). They were based on the Draft Brussels Declaration 1874 and the Oxford Manual 1880.

86. The Preamble to the Hague Convention 1907 reads as follows:

“Seeing that while seeking means to preserve peace and prevent armed conflicts between nations, it is likewise necessary to bear in mind the case where the appeal to arms has been brought about by events which their care was unable to avert;

Animated by the desire to serve, even in this extreme case, the interests of humanity and the ever progressive needs of civilization;

Thinking it important, with this object, to revise the general laws and customs of war, either with a view to defining them with greater precision or to confining them within such limits as would mitigate their severity as far as possible;

Have deemed it necessary to complete and explain in certain particulars the work of the First Peace Conference, which, following on the Brussels Conference of 1874, and inspired by the ideas dictated by a wise and generous forethought, adopted provisions intended to define and govern the usages of war on land.

According to the views of the High Contracting Parties, these provisions, the wording of which has been inspired by the desire to diminish the evils of war, as far as military requirements permit, are intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants.

It has not, however, been found possible at present to concert regulations covering all the circumstances which arise in practice;

On the other hand, the High Contracting Parties clearly do not intend that unforeseen cases should, in the absence of a written undertaking, be left to the arbitrary judgment of military commanders.

Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.

They declare that it is in this sense especially that Articles I and 2 of the Regulations adopted must be understood.”

87. The eighth paragraph of the Preamble cited above, is known as the “Martens Clause”. An almost identical clause had already been included in the preamble to the Hague Convention (II) of 1899 and it was in substance repeated in each of the Geneva Conventions (I-IV) 1949 as well as in the Protocol Additional 1977 (paragraph 134-142 below).

88. Article 2 of the Hague Convention 1907 contained a “ si omnes ” solidarity clause to the effect that the Hague Convention and Regulations 1907 only applied between the Contracting States and then only if all the belligerents were Contracting States. However, the IMT Nuremberg judgment later confirmed that by 1939 the Hague Convention and Regulations 1907 were regarded as being declaratory of the laws and customs of war (paragraphs 118 and 207 below).

89. The other relevant provisions of the Hague Convention 1907 are as follows:

“Art. 1. The Contracting Powers shall issue instructions to their armed land forces which shall be in conformity with the Regulations respecting the laws and customs of war on land, annexed to the present Convention....

Art. 3. A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.”

90. Articles 1 and 2 of the Hague Regulations 1907 read as follows:

“Art. 1. The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:

1. To be commanded by a person responsible for his subordinates;

2. To have a fixed distinctive emblem recognizable at a distance;

3. To carry arms openly; and

4. To conduct their operations in accordance with the laws and customs of war. In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination 'army'.

Art. 2. The inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1, shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war.”

91. Chapter II (Articles 4-20) of the Hague Regulations 1907 included the rules identifying prisoners of war, the requirement to treat prisoners of war humanely (Article 4) and the limitation of any measures taken for insubordination to those necessary (Article 8). The Regulations continued:

“Art. 22. The right of belligerents to adopt means of injuring the enemy is not unlimited.

Art. 23. In addition to the prohibitions provided by special Conventions, it is especially forbidden.

(a)...

(b) To kill or wound treacherously individuals belonging to the hostile nation or army;

(c) To kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion;

(d)...

(e) To employ arms, projectiles, or material calculated to cause unnecessary suffering;

(f) To make improper use of a flag of truce, of the national flag or of the military insignia and uniform of the enemy, as well as the distinctive badges of the Geneva Convention;

(g) To destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war;

(h) To declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.

(i)...”

“Art. 29. A person can only be considered a spy when, acting clandestinely or on false pretences, he obtains or endeavours to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party....

Art. 30. A spy taken in the act shall not be punished without previous trial.

Art. 31. A spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage.”

6. Report of the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties (“International Commission Report 1919”)

92. This Commission was charged by the Paris Peace Conference to prepare a Report, inter alia, on facts concerning breaches of the laws and customs of war by the forces of the German Empire and allies (including Turkish officials), on the degree of responsibility for such offences attaching to members of the enemy forces as well as on the constitution and procedure of a tribunal appropriate for the trial of such offences. The Report was completed in 1919 and it drew up a list of approximately 900 alleged war criminals and proposed charges against Turkish officials and others for “crimes against the laws of humanity”, relying on the Martens Clause of the Hague Convention 1907. It also drew up a non-exhaustive list of 32 offences committed during the war regarded as contrary to existing conventions and customs including: murders and massacres; torture of civilians; the imposition of collective penalties; wanton devastation and destruction of property; as well as the ill-treatment of wounded and prisoners of war.

93. As regards individual criminal liability, the Commission stated:

“All persons belonging to enemy countries, however their position may have been, without distinction of rank, including Chiefs of State, who have been guilty of offences against the laws and customs of war or the laws of humanity, are liable to criminal prosecution.”

7. The Treaty of Versailles 1919

94. The Treaty of Versailles 1919 contained a number of provisions providing for the international trial and punishment of war criminals including the German Emperor. The prosecution provisions were never applied: the Emperor's extradition was refused and an international trial of other alleged war criminals was dropped in favour of a trial by Germany itself. Article 229 also retained the possibility of bringing persons guilty of criminal acts, against the nationals of one of the allied and associated Powers, before the military tribunals of that power.

8. Treaty of Sèvres 1920

95. The Treaty of Sèvres (the peace agreement between the Allied Powers and Turkey following the First World War), contains similar provisions (Articles 226-230) to those outlined in the Treaty of Versailles as regards the pursuit before military tribunals by the Allied Powers of Turkish officials accused of acts violating the laws and customs of war. This treaty was never ratified and it was superseded by a Declaration of Amnesty (signed on the same date as the Treaty of Lausanne 1923) by France, the United Kingdom (“UK”), Greece, Italy, Japan, Romania and Turkey. The Declaration provided that Greece and Turkey granted “full and complete amnesty... for all crimes or offences committed during the same period which were evidently connected with the political events which have taken place during that period” (the relevant period being 1 August 1914 to the 20 November 1922).

9. Draft Convention for the Protection of Civilian Populations Against New Engines of War (“Draft Amsterdam Convention 1938”)

96. This Convention was prepared by the International Law Association but never adopted by States. Its negative definition of a civilian population was consistent with the definition in the Oxford Manual 1880:

“Art. 1. The civilian population of a State shall not form the object of an act of war. The phrase “civilian population” within the meaning of this Convention shall include all those not enlisted in any branch of the combatant services nor for the time being employed or occupied in any belligerent establishment as defined in Article 2.”

C. Practice prior to the Second World War

1. U.S. courts-martial 1899-1902, Philippines [2]

97. In 1901 and 1902 US courts-martial tried a number of US military personnel accused of, inter alia, violations of the laws of war during the US counter-insurgency campaign in the Philippines and, notably, of extra-judicial executions. Few in number, the submissions of the Judges-Advocate General and the reviewing authorities contained comments on the laws and customs of war on matters including the responsibility of commanding officers and the treatment of prisoners of war. These comments were influential in later codifications. These trials constituted an early example of prosecutions at a national level of national military personnel accused of crimes against the enemy contrary to the laws of war.

98. In the trial of Major Waller, the reviewing authority observed:

“the laws of war do not sanction, and the spirit of the age will not suffer that any officer may, upon the dictates of his own will, inflict death upon helpless prisoners committed to his care. Any other view looks to the method of the savage and away from the reasonable demand of civilised nations that war shall be prosecuted with the least possible cruelty and injustice.”

99. In Major Glenn 's case, the Judge Advocate pointed out that, even if US soldiers were operating in a difficult situation against isolated bands of insurgents acting as guerrillas in flagrant disregard of the rules of civilised war, they were not relieved of “their obligation to adhere to the rules of war in the efforts put forth by them... to suppress the insurrection and restore public order.”

100. At the trial of Lieutenant Brown for the murder of a prisoner of war, the Judge Advocate noted that there existed a 'state of public war' in the Philippines and that the culpability of the accused should therefore have been determined not by the lex loci but from the standpoint of international law which, in that case, meant the rules and customs of war.

2. “The Leipzig Trials”

101. Further to the Treaty of Versailles, Germany brought proceedings against persons before the Supreme Court in Leipzig. The Allies presented 45 cases (out of the almost 900 files included in the International Commission Report 1919) concerning the treatment of prisoners of war and the wounded as well as an order to torpedo a British hospital ship. The trials took place in 1921. Twelve trials took place in 1921 resulting in 6 acquittals and six convictions (the sentences imposed being symbolic).The Allies decided to refer no more cases to the German courts.

102. The convictions relied mainly on German military law but there were some express references to international law notably, in the Llandovery Castle decision:

“The firing on the boats was an offence against the law of nations. In war on land the killing of unarmed enemies is not allowed [Hague Regulations 1907], para. 23 (c)), similarly in war at sea, the killing of shipwrecked people, who have taken refuge in life-boats, is forbidden..... Any violation of the law of nations in warfare is, as the Senate has already pointed out, a punishable offence, so far as in general, a penalty is attached to the deed. The killing of enemies in war is in accordance with the will of the State that makes war (whose laws as to the legality or illegality on the question of killing are decisive), only in so far as such killing is in accordance with the conditions and limitations imposed by the law of nations..... The rule of international law, which is here involved, is simple and universally known. No possible doubt can exist with regard to the question of its applicability. The court must in this instance affirm Patzig's guilt of killing contrary to international law.” [3]

Дата добавления: 2015-11-16